11. These proceedings were initiated by way of an originating motion, dated 11th March 2026. 3 orders are sought, a conservatory order, to stay implementation of an alleged directive, contained in a letter, dated 3rd February 2026; an order of certiorari, to quash the decision and directive in that letter; an order of prohibition, to restrain the 1st respondent, from interfering with, suspending or discontinuing the Bachelor of Science degree programme in oral health; a declaration that that programme is valid and lawful, and should be allowed to continue uninterrupted; and a mandamus order, to compel the 1st respondent to withdraw the said directive and recognise the statutory supremacy of the interested party.
2. The grounds, on the face of the application, are that the interested party has the exclusive statutory mandate, from the Universities Act, Cap. 210, Laws of Kenya, section 5A(2), to accredit and recognise academic programmes, and the 1st respondent is not vested with legal capacity to cancel an accredited university degree programme; the attempt by the 1st respondent to govern university education by executive fiat is a direct assault on the separation of statutory powers, and amounts to executive overreach; the decree, contained in that purported directive, is arbitrary and lacking in foundation, and is unreasonable; the purported directive is an ambush and a violation of section 47 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, as it does not give prior notice to the students affected, and it jeopardises their future; among others.
3. The factual background is given in the affidavit, sworn by Ndunu Chege, described as the treasurer of the applicant, on 11th March 2026. He avers that the proceedings are brought in public interest, as the applicant is a registered association. It is averred that the Mount Kenya University offers a Bachelor of Science degree in oral health, an academic programme that was approved and accredited by the interested party in 2016. It is averred that on 3rd February 2026, the 1st respondent allegedly issued an abrupt unilateral decree, to the Vice Chancellor of Mount Kenya University, directing the immediate discontinuation of the oral health programme, justifying the order with an explanation that the programme is "not aligned with the prevailing oral health population needs," and that there is "no clearly established service delivery gap."
4. It is averred that the said allegations, by the 1st respondent, contained in that letter, are misinformed, arbitrary and bereft of any empirical data, research mapping, or scientific backing, and that it is capricious for a Cabinet Secretary to issue sweeping declarations about the oral health needs of the country, without referencing a single health sector survey or human resource audit. It is further averred that the 1st respondent issued a 21-day ultimatum, demanding that the Mount Kenya University develop a "transition plan," for all students currently enrolled in the programme.
5. It is asserted that the said directive is a classic case of ultra vires, and a blatant usurpation of statutory power, for under Section 5A (2) of the Universities Act, as introduced by the Universities Amendment Act, No. 48 of 2016, the recognition, licensing, approval, or accreditation of any academic programme is the "exclusive mandate of the Commission for University Education at the exclusion of any other person or body." Hence, it is argued, that the 1st respondent, has absolutely no statutory authority, jurisdiction, or legal capacity to de-register, suspend, or order the discontinuation of a university academic programme. His actions are said to be an illegal attempt to rule by fiat rather than by the law. The purported directive is said to constitute a direct and frontal attack on the constitutional order in Kenya, by illegally bypassing the statutorily mandated regulator, the interested party herein, to shut down a lawful programme, by which act the 1st respondent has flagrantly violated Article 10 of the Constitution, specifically subverting the national values of the rule of law, good governance, transparency, and accountability.
6. It is also said that the directive offends Article 47 of the Constitution and the Fair Administrative Action Act, for the validly accredited programme, that houses 225 active students, cannot be extinguished via a solitary letter drafted in an office, devoid of any prior notice, stakeholder engagement, public participation, or the right to be heard.
7. It is averred that the directive has thrown the dental health training sector into a state of paralysis, unlawfully prejudiced hundreds of students currently enrolled, questioned the validity of their current studies mid-semester, and violated their constitutional right to education. The court is urged to assert the supremacy of the Constitution and the law, for, if the arbitrary directive is not suspended immediately by way of a conservatory order, the Executive will be emboldened to dismantle statutory bodies, paralyze the education sector, and operate outside the confines of their legal mandates. It is submitted that, in the interest of justice, the protection of the dental profession, and the preservation of the rule of law, the said directive should be halted in limine and, upon the hearing of this application, be quashed entirely by an order of certiorari.
8. The applicant has attached 2 documents, to the affidavit. There is a list of accredited universities in Kenya, indicating the degree programmes that the interested party has approved, for each of the accredited universities. There is also a copy of the impugned letter, dated 3rd February 2026, from the 1st respondent, addressed to the Vice Chancellor of Mount Kenya University.
9. Directions were given, on the disposal of the originating motion, on 12th March 2026, for filing of responses, and written submissions.
10. The only response, to the application, was by the 2nd respondent, who filed a notice of preliminary objection, dated 13th April 2026. The issues raised, in that notice, are that the impugned directive was addressed to Mount Kenya University, and not to the applicant; the applicant is a stranger to the communication between the 1st respondent and Mount Kenya University, and there is no privity of contract or interest between the applicant and the said directive; under section 7(1) of the Fair Administrative Action Act, only a "person who is aggrieved" by an administrative action may apply for judicial review; the applicant has not demonstrated that it is directly and personally aggrieved by the directive; the correct and proper party to challenge the directive, if any, is Mount Kenya University, which is not even made a party in the proceedings; the presence of the applicant, in the matter, is unnecessary, superfluous and vexatious; the applicant purports to be an association or society, but has not produced or exhibited any Certificate of Registration under the Societies Act (Cap. 108) to demonstrate that it is a body corporate with perpetual succession capable of suing or being sued in its own name; the deponent of the affidavit has not exhibited a board resolution, or a committee resolution, or an extract from the Constitution of the applicant authorizing him to swear an affidavit to institute these proceedings on behalf of the applicant Association; without such written authority, the deponent of that affidavit is a stranger to these proceedings, and the affidavit is incompetent, fatally defective, and incapable of supporting the application; and the affiant herein, as treasurer of the applicant, has not demonstrated any personal knowledge of the facts giving rise to the application, nor any direct involvement in the decision-making process of the applicant to institute these proceedings.
11. The applicant reacted to that preliminary objection, by way of an affidavit, sworn by Ndunu Chege, on 21st April 2026, essentially to provide evidence of registration, and to exhibit proof of authorisation to him, to swear the affidavit in support. He has attached a copy of a certificate of registration of the applicant, and a letter, dated 10th March 2026, from the applicant, being a resolution allowing him to swear affidavits, and to sign documents relating to all legal actions and proceedings relating to the applicant.
12. Both sides have filed written submissions. The applicant has submitted on the preliminary objection, on the standing to bring the proceedings and on the substance of the originating motion itself. The submissions by the 2nd respondent are restricted to the preliminary objection.
13. On the preliminary objection, it is argued, by the applicant, that the same does not reach the threshold set in Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] EA 696, Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR, Independent Electoral & Boundaries Commission vs. Jane Cheperenger & 2 Others [2015] eKLR and Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR. It is submitted that none of the issues raised could be determined without reference to evidence. East African Safari Air Limited vs. Anthony Ambaka Kegode & Elizabeth Ann Kegode [2011] KECA 160 (KLR), Otieno vs. Nyanuaya (Chairman Kisumu Centre Juakali Artisans Association) & 2 others; Registrar of Societies (Interested Party) [2023] KEHC 26939 (KLR) are cited in support.
14. On its standing or capacity to commence the proceedings, the applicant argues that locus standi is no longer founded on the common law, for the Constitution 2010 has expanded it, through Article 22(1), to allow every person the right to initiate court proceedings, alleging denial, infringement, violation or threats to constitutional rights and freedoms in the Bill of Rights. It is further argued that rights and freedoms are violated, infringed or threatened, by the action of the 1st respondent. It is submitted that Article 22(2)(d) confers express standing upon "an association acting in the interest of one or more of its members," while Article 258 extends the same to constitutional claims beyond the Bill of Rights. Article 260 is said to define “person,” to include any body of persons “whether incorporated or unincorporated.” It is argued that the applicant was covered by Articles 22(2)(d) and 260 of the Constitution, as it is a professional body, whose membership consists of dental health practitioners and trainees, the very class of persons whose academic pipeline has been targeted by the impugned directive.
15. On locus standi, the applicant cites Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR), Mitu-Bell Welfare Society vs. Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), Randu Nzai Ruwa & 2 others vs. Secretary, IEBC & 9 others [2016] KECA 371 (KLR), Kenya Bankers Association vs. Minister for Finance & Another [2002] 1 KLR 61, among others.
16. It is submitted that the Fair Administrative Action Act was enacted to operationalise Article 47 of the Constitution, and it ought to be read in harmony with the Constitution, and in particular Articles 22 and 258. Reliance is placed on Judicial Service Commission vs. Mbalu Mutava & another [2015] eKLR, Republic vs. Kilifi Land Control Board & 9 others Ex Parte Owen Yaa Baya [2015] eKLR, among others.
17. On the substance of the application, section 5A (2) of the Universities Act is cited, to submit that the interested party is clothed with exclusive mandate to recognise, authorise, approve and accredit academic programmes, including degrees, diplomas and certificates, offered at any university. It is argued that, under section 5A (3), the Cabinet Secretary may be consulted by the interested party before a programme is approved. It is submitted that a statutory body can only do what the statute expressly or by necessary implication authorises, and that everything else would-be ultra vires. Attorney General vs. Fulham Corporation [1921] 1 Ch 440, Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, Padfield vs. Minister of Agriculture, Fisheries and Food [1968] AC 997, Republic vs. Council of Legal Education & Another Ex-Parte Mount Kenya University [2016] eKLR and Okiya Omtatah Okoiti vs. Cabinet Secretary, Ministry of Education & Another [2019] KEELR 677 (KLR) are cited.
18. It is submitted that the 1st respondent has no authority, under the Universities Act, to do what he has purportedly done, for his role is limited to being consulted by the interested party on any programme. It is asserted that there is no authority to purport to command a university to discontinue an academic programme. It is submitted that Article 47 guarantees fair administrative action, that is lawful, reasonable and procedurally fair, while section 4(2)(3) of the Fair Administrative Action Act requires prior notice and reasonable opportunity for a hearing, before an adverse decision is made.
19. On its part, the 2nd respondent has identified 7 issues for determination, and these are whether the preliminary objection meets the threshold of a pure point of law, the matter is a justiciable administrative action, the applicant has the requisite locus standi to maintain this application, the applicant possesses the legal capacity and representative authority to sue, the Supporting Affidavit is fatally defective for lack of personal knowledge and for containing inadmissible hearsay evidence, the "Further Affidavit" filed by the applicant can cure the fundamental defects in the suit, which are incurable as a matter of law, and the applicant is abusing the liberal standing provisions of Article 22 of the Constitution.
20. It is asserted, based on Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 and Owners of Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] eKLR, the preliminary objection is properly before the court, because it challenges the jurisdiction of the court to handle the matter as framed. On justiciability, it is argued that the court should first consider whether there is an existing actual and justiciable administrative action, capable of being reviewed under the Fair Administrative Action Act, as it is predicated on a single letter that has not been authenticated, as a foundation has not been laid, under section 68 of the Evidence Act, Cap. 80, Laws of Kenya, for its admissibility as secondary evidence, as was ruled in Peter Njau Kang’ethe vs. Bic East Africa Limited [2021] KEELRC 329 (KLR). It is asserted that the applicant, as a third party, has not explained how it got possession of a letter not addressed to it, and which was meant to be confidential. Section 2 of the Fair Administrative Action Act is cited on the definition of what qualifies to be an administrative action, to argue that the impugned action does not impose an obligation, and the existence of the letter bearing the decision has not been demonstrated.
21. On locus standi, it is submitted that the impugned letter was not addressed to the applicant, but to another, and, as the applicant was not party to the communication, it would be a stranger to the correspondence. Section 7(1) of the Fair Administrative Action Act, which defines who may bring judicial review proceedings under that Act, to mean a person who is aggrieved of the impugned administrative action, is cited, to make the point that the applicant cannot be aggrieved by a directive that was not addressed to it.
22. It is acknowledged, based on Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, that the Constitution, 2010, has liberalised the concept of standing, but it is asserted that an applicant must still anchor their claim on some real or threatened legal wrong, and sufficient interest cannot be stretched to cover a phantom directive. It is submitted, founded on Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR, that the liberal nature of Article 22 does not mean that every person can bring any claim without any connection whatsoever to the subject-matter. It is argued that the applicant can only claim to be "aggrieved," or "acting in the public interest," when there exists an actual administrative action or decision. In the present case, it is argued, without proof that the directive was ever written, and served upon Mount Kenya University, and in the absence of Mount Kenya University in these proceedings, who ought to be the proper primary party, to verify the status of the communication, the applicant has no locus standi. More fundamentally, the applicant has not demonstrated that its members, or the public at large, stands to suffer any concrete harm from the alleged directive, assuming it exists.
23. The other issue is around the legal capacity of the applicant, and it is argued that, even if the court were to find that an administrative action exists, and that the applicant has some interest in it, which is denied, the suit would still be fatally defective, because the applicant lacks the legal capacity to sue, for, although the applicant purports to be a registered association, at paragraph 2 of the supporting affidavit, at the time of filing its originating motion, it failed to exhibit a certificate of registration, and that defect could not be cured by filing a further affidavit, to exhibit the certificate. It is submitted that an unlawful society could not sue or be sued in its name. Shadrack Mwamuu Nzioka & 2 others (suing as officials of Crescent Self Help Group) vs. Tropical Blooms Limited [2020] eKLR, is cited in that regard. It is submitted that the requirements of Order 1 rule 8 of the Civil Procedure Rules have not been met.
24. There are submissions around the supporting affidavit, the argument being that the same is fatally defective, for lack of personal knowledge and for containing inadmissible evidence, and for not complying with Order 19 rule 3(1) of the Civil Procedure Rules. It is submitted that that affidavit contains allegations, which the deponent cannot prove, as a matter of his own personal knowledge, and which is essentially hearsay evidence.
25. There are also submissions around the further affidavit, as to whether it can cure the fundamental defects in the suit. It is argued that the said affidavit was filed to cure the defects raised in the preliminary objection, to introduce documents to show that the applicant is a registered society, and authorisation had been given for the filing of the application. It is submitted that preliminary objections are determined on the basis of the material filed initially, and a suit, which is a nullity ab initio, cannot be cured by subsequent filings.
26. The final submissions are around abuse of the liberal standing provisions of Article 22 of the Constitution. It is acknowledged that that provision has liberalised the concept of standing in Kenya, but it is argued that that is not an excuse for procedural defect, nor a licence to file speculative suits. Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR is cited, for the argument that the liberalization of standing, under Article 22, does not mean that any person can bring any claim without any connection to the subject-matter. It is submitted that the court must still be satisfied that the applicant has a genuine grievance, and that the suit is not frivolous, vexatious, or an abuse of the court process.
27. There are 2 principle issues for determination; and the determination of the second issue may well depend on the outcome of the first. The first is technical, whether the proceedings are properly before the court; while the second is substantive, whether the application should be granted on its merits. I will start with the first, as it goes to jurisdiction, and a determination in the affirmative would render moot the consideration of the second.
28. The first issue rides exclusively on the preliminary objection, which raises technical issues around the competence of the originating motion, around justiciability, locus standi, legal capacity to sue, the validity of the affidavits, and Article 22 of the Constitution.
29. Let me start with the justiciability issue, which essentially determines whether a matter is suitable for a court to decide. It refers to the types of matters that a court can properly adjudicate, so that where a matter is adjudged to be non-justiciable, the court ought to dismiss it. In the broad scheme of things, relating to governance, it is a legal principle based on the doctrine of separation of powers, where the courts have to be careful not to overstep into the role of the other branches of government. A matter, that ought to be within the exclusive province of either the legislature or the executive, would not be justiciable, and the courts do not have to deal with it.
30. Justiciability is raised here in the sense of whether the issues raised are suitable for this court to handle. To assess justiciability, there would be 4 key considerations. The first would be on standing, answering the question whether the party bringing or commencing the matter has suffered a direct injury. The second would relate to whether the matter is ready for review by the court, in terms of whether the same has matured or if the issues are still speculative. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR). The third would be whether the issues have already been resolved, which would make determination by the court unnecessary; or if the resolution by the court would be of academic value only, resulting in orders being made in vain. See Shadrack Kinyanjui Wambui vs. Independent Electoral and Boundaries Commission & 2 others [2017] KEHC 9133 (KLR). The last would be whether the dispute should be resolved by the court, or through a different specialised process.
31. The cause herein is founded on an alleged decision by the 1st respondent, that a degree programme, in oral health, run by the Mount Kenya University, be discontinued, which decision is then communicated to the said university, by a letter dated 3rd February 2026. The applicant principally seeks the quashing of that alleged decision; the other prayers are largely ancillary to that. Let me examine the justiciability of that cause, based on the 4 considerations that I have discussed above.
32. On standing, that is the matter as to whether the applicant has suffered a direct injury, the answer would be it has not. The decision was not made with respect to it, neither was it addressed to it, but to another party, which is not even named as a party to these proceedings. Sections 7(1) and 9(1) of the Fair Administrative Action Act, contemplate action by a person who is aggrieved. That would suggest that the person aggrieved ought to demonstrate that the administrative action complained about has affected his legal rights or interests, in a direct and substantial way. That would appear to exclude the applicant herein, meaning that the applicant would not be clothed with adequate standing, to commence the cause, to challenge a decision which does not affect its legal rights or interests, or which does not affect it directly.
33. However, there is an exception, when it comes to public interest litigation, and a person without a direct personal interest may still have a standing. That is made possible by Article 22 of the Constitution of Kenya, which falls under the Bill of Rights, and which permits any person to act in public interest, to enforce the rights and freedoms in the Bill of Rights. The Fair Administrative Action Act was passed specifically to operationalise Article 47 of the Constitution, which also falls under the Bill of Rights, and the proceedings under it are for enforcement of rights, which links or connects the instant process to Article 22. Therefore, based on Articles 22 and 47, the applicant need not be directly affected by the process or decision complained about, for it is allowed to bring public interest litigation, to challenge administrative actions that violate constitutional rights. Article 22 is reinforced by Article 258 of the Constitution, which carries complementary provisions, which touch on constitutional issues that may fall outside the Bill of Rights. See Mwabalahe & 5 others vs. Bamahriz & another [2024] KEELC 13280 (KLR).
34. The second consideration is on whether the claim has matured, or whether it is largely speculative. The impugned letter, of 3rd February 2026, which is the basis for commencement of these proceedings, at relevant portions, reads as follows:
“… you are advised to discontinue the programme and ensure that all health-related programmes offered at the university respond to identified health population health needs and service delivery gaps.
Additionally, in consultation with KMPDC, you are required to develop a transition plan for all students who have completed or are currently enrolled in the programme, outlining clear transition arrangements in line with applicable regulatory requirement.
The transition plan should be forwarded to this Office within 21 days of this letter for information and record purposes.”
35. My understanding, from the language of the first paragraph of the portion of the letter that I have recited above, is that the letter is advising the Vice Chancellor to discontinue the programme, based on the opinion of the Ministry of Health, that it was “not aligned with the prevailing oral health population needs of the country,” that there was no clearly established service delivery gap that it was seeking to address, and that the students enrolled in the programme risked spending their resources without an available pathway to professional practice. The language is seemingly advisory, not directory. It does not direct the discontinuation of the programme, but, rather, advises the discontinuation. It seemingly offers advice, rather than direct or command action. There is apparently, that is on the face of it, no order to discontinue the programme, and, therefore, it could be argued that no decision has been made, by the 1st respondent, to discontinue the programme.
36. Based on the foregoing, there is a suggestion that there is no case for review, because the case herein has not matured for that. It would have matured, in that context, if a decision had been made, and the Mount Kenya University was being directed or instructed to discontinue the programme. The issues appear, in that context, to be still speculative, so long as no decision has been made. It would, then, in the circumstances, be premature and speculative to go to court, seeking to quash a decision or a directive which is yet to be made. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR).
37. The 2nd respondent has been ambivalent, on the status of the impugned letter, at once speaking as if the letter does not exist, and, in the same breath, stating that it is confidential communication, which the applicant should not have accessed. It is a classic case of speaking from both sides of the mouth. I note that the 1st respondent, the purported author of that letter, has not appeared, and has not filed any response. A response, by the 1st respondent, would have cleared the air, on the authenticity of the letter. I find it curious, that the office of the Attorney General, who is named as the 2nd respondent, and who should have come on record for the 1st respondent, for it is the constitutional duty of the 2nd respondent to act for the State and its officers, by dint of Article 156(4)(b) of the Constitution, has, for some undisclosed reason, been careful not to come on record, as appearing for the 1st respondent, and has chosen to go on record exclusively for itself. That act or conduct says something. I shall treat the impugned letter as authentic.
38. The impugned letter has been placed before the court by way of an affidavit. It is affidavit evidence, founded on statements made on oath. Any challenge, to its genuineness or authenticity, can only be raised through another affidavit, sworn by the alleged maker of the letter, denouncing it. Its authenticity cannot be countered or challenged through grounds of opposition or written submissions. It is evidence presented through an affidavit, which can only be cancelled by counter-evidence presented through another affidavit, sworn and filed by the opposing party. The failure to do that can only mean that the evidence, that the 1st respondent wrote the impugned letter, has not been controverted, and that that letter is authentic.
39. The 2nd respondent has argued that the letter was not meant for consumption by the applicant. That is quite so. However, this is public litigation. These are matters touching on public interest. The degree programme is mounted by a private university, but that university is accredited to run the subject academic programme by the interested party, which is a public entity, responsible for governance of the university education space in Kenya. The academic programme, although run by a private entity, is meant for consumption by the public, hence there is public interest, which draws in the 1st respondent and the interested party, both of whom are public entities, albeit executing different mandates.
40. Whatever happens, at the public space, should be of interest to the general public, for it affects them. Correspondence, purportedly done in public interest, conveying a decision that would impact the public, cannot be said to be private or confidential. The fact that it is not addressed to the public-spirited individual or a
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2. The grounds, on the face of the application, are that the interested party has the exclusive statutory mandate, from the Universities Act, Cap. 210, Laws of Kenya, section 5A(2), to accredit and recognise academic programmes, and the 1st respondent is not vested with legal capacity to cancel an accredited university degree programme; the attempt by the 1st respondent to govern university education by executive fiat is a direct assault on the separation of statutory powers, and amounts to executive overreach; the decree, contained in that purported directive, is arbitrary and lacking in foundation, and is unreasonable; the purported directive is an ambush and a violation of section 47 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, as it does not give prior notice to the students affected, and it jeopardises their future; among others.
3. The factual background is given in the affidavit, sworn by Ndunu Chege, described as the treasurer of the applicant, on 11th March 2026. He avers that the proceedings are brought in public interest, as the applicant is a registered association. It is averred that the Mount Kenya University offers a Bachelor of Science degree in oral health, an academic programme that was approved and accredited by the interested party in 2016. It is averred that on 3rd February 2026, the 1st respondent allegedly issued an abrupt unilateral decree, to the Vice Chancellor of Mount Kenya University, directing the immediate discontinuation of the oral health programme, justifying the order with an explanation that the programme is "not aligned with the prevailing oral health population needs," and that there is "no clearly established service delivery gap."
4. It is averred that the said allegations, by the 1st respondent, contained in that letter, are misinformed, arbitrary and bereft of any empirical data, research mapping, or scientific backing, and that it is capricious for a Cabinet Secretary to issue sweeping declarations about the oral health needs of the country, without referencing a single health sector survey or human resource audit. It is further averred that the 1st respondent issued a 21-day ultimatum, demanding that the Mount Kenya University develop a "transition plan," for all students currently enrolled in the programme.
5. It is asserted that the said directive is a classic case of ultra vires, and a blatant usurpation of statutory power, for under Section 5A (2) of the Universities Act, as introduced by the Universities Amendment Act, No. 48 of 2016, the recognition, licensing, approval, or accreditation of any academic programme is the "exclusive mandate of the Commission for University Education at the exclusion of any other person or body." Hence, it is argued, that the 1st respondent, has absolutely no statutory authority, jurisdiction, or legal capacity to de-register, suspend, or order the discontinuation of a university academic programme. His actions are said to be an illegal attempt to rule by fiat rather than by the law. The purported directive is said to constitute a direct and frontal attack on the constitutional order in Kenya, by illegally bypassing the statutorily mandated regulator, the interested party herein, to shut down a lawful programme, by which act the 1st respondent has flagrantly violated Article 10 of the Constitution, specifically subverting the national values of the rule of law, good governance, transparency, and accountability.
6. It is also said that the directive offends Article 47 of the Constitution and the Fair Administrative Action Act, for the validly accredited programme, that houses 225 active students, cannot be extinguished via a solitary letter drafted in an office, devoid of any prior notice, stakeholder engagement, public participation, or the right to be heard.
7. It is averred that the directive has thrown the dental health training sector into a state of paralysis, unlawfully prejudiced hundreds of students currently enrolled, questioned the validity of their current studies mid-semester, and violated their constitutional right to education. The court is urged to assert the supremacy of the Constitution and the law, for, if the arbitrary directive is not suspended immediately by way of a conservatory order, the Executive will be emboldened to dismantle statutory bodies, paralyze the education sector, and operate outside the confines of their legal mandates. It is submitted that, in the interest of justice, the protection of the dental profession, and the preservation of the rule of law, the said directive should be halted in limine and, upon the hearing of this application, be quashed entirely by an order of certiorari.
8. The applicant has attached 2 documents, to the affidavit. There is a list of accredited universities in Kenya, indicating the degree programmes that the interested party has approved, for each of the accredited universities. There is also a copy of the impugned letter, dated 3rd February 2026, from the 1st respondent, addressed to the Vice Chancellor of Mount Kenya University.
9. Directions were given, on the disposal of the originating motion, on 12th March 2026, for filing of responses, and written submissions.
10. The only response, to the application, was by the 2nd respondent, who filed a notice of preliminary objection, dated 13th April 2026. The issues raised, in that notice, are that the impugned directive was addressed to Mount Kenya University, and not to the applicant; the applicant is a stranger to the communication between the 1st respondent and Mount Kenya University, and there is no privity of contract or interest between the applicant and the said directive; under section 7(1) of the Fair Administrative Action Act, only a "person who is aggrieved" by an administrative action may apply for judicial review; the applicant has not demonstrated that it is directly and personally aggrieved by the directive; the correct and proper party to challenge the directive, if any, is Mount Kenya University, which is not even made a party in the proceedings; the presence of the applicant, in the matter, is unnecessary, superfluous and vexatious; the applicant purports to be an association or society, but has not produced or exhibited any Certificate of Registration under the Societies Act (Cap. 108) to demonstrate that it is a body corporate with perpetual succession capable of suing or being sued in its own name; the deponent of the affidavit has not exhibited a board resolution, or a committee resolution, or an extract from the Constitution of the applicant authorizing him to swear an affidavit to institute these proceedings on behalf of the applicant Association; without such written authority, the deponent of that affidavit is a stranger to these proceedings, and the affidavit is incompetent, fatally defective, and incapable of supporting the application; and the affiant herein, as treasurer of the applicant, has not demonstrated any personal knowledge of the facts giving rise to the application, nor any direct involvement in the decision-making process of the applicant to institute these proceedings.
11. The applicant reacted to that preliminary objection, by way of an affidavit, sworn by Ndunu Chege, on 21st April 2026, essentially to provide evidence of registration, and to exhibit proof of authorisation to him, to swear the affidavit in support. He has attached a copy of a certificate of registration of the applicant, and a letter, dated 10th March 2026, from the applicant, being a resolution allowing him to swear affidavits, and to sign documents relating to all legal actions and proceedings relating to the applicant.
12. Both sides have filed written submissions. The applicant has submitted on the preliminary objection, on the standing to bring the proceedings and on the substance of the originating motion itself. The submissions by the 2nd respondent are restricted to the preliminary objection.
13. On the preliminary objection, it is argued, by the applicant, that the same does not reach the threshold set in Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] EA 696, Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others [2014] eKLR, Independent Electoral & Boundaries Commission vs. Jane Cheperenger & 2 Others [2015] eKLR and Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR. It is submitted that none of the issues raised could be determined without reference to evidence. East African Safari Air Limited vs. Anthony Ambaka Kegode & Elizabeth Ann Kegode [2011] KECA 160 (KLR), Otieno vs. Nyanuaya (Chairman Kisumu Centre Juakali Artisans Association) & 2 others; Registrar of Societies (Interested Party) [2023] KEHC 26939 (KLR) are cited in support.
14. On its standing or capacity to commence the proceedings, the applicant argues that locus standi is no longer founded on the common law, for the Constitution 2010 has expanded it, through Article 22(1), to allow every person the right to initiate court proceedings, alleging denial, infringement, violation or threats to constitutional rights and freedoms in the Bill of Rights. It is further argued that rights and freedoms are violated, infringed or threatened, by the action of the 1st respondent. It is submitted that Article 22(2)(d) confers express standing upon "an association acting in the interest of one or more of its members," while Article 258 extends the same to constitutional claims beyond the Bill of Rights. Article 260 is said to define “person,” to include any body of persons “whether incorporated or unincorporated.” It is argued that the applicant was covered by Articles 22(2)(d) and 260 of the Constitution, as it is a professional body, whose membership consists of dental health practitioners and trainees, the very class of persons whose academic pipeline has been targeted by the impugned directive.
15. On locus standi, the applicant cites Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR), Mitu-Bell Welfare Society vs. Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), Randu Nzai Ruwa & 2 others vs. Secretary, IEBC & 9 others [2016] KECA 371 (KLR), Kenya Bankers Association vs. Minister for Finance & Another [2002] 1 KLR 61, among others.
16. It is submitted that the Fair Administrative Action Act was enacted to operationalise Article 47 of the Constitution, and it ought to be read in harmony with the Constitution, and in particular Articles 22 and 258. Reliance is placed on Judicial Service Commission vs. Mbalu Mutava & another [2015] eKLR, Republic vs. Kilifi Land Control Board & 9 others Ex Parte Owen Yaa Baya [2015] eKLR, among others.
17. On the substance of the application, section 5A (2) of the Universities Act is cited, to submit that the interested party is clothed with exclusive mandate to recognise, authorise, approve and accredit academic programmes, including degrees, diplomas and certificates, offered at any university. It is argued that, under section 5A (3), the Cabinet Secretary may be consulted by the interested party before a programme is approved. It is submitted that a statutory body can only do what the statute expressly or by necessary implication authorises, and that everything else would-be ultra vires. Attorney General vs. Fulham Corporation [1921] 1 Ch 440, Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, Padfield vs. Minister of Agriculture, Fisheries and Food [1968] AC 997, Republic vs. Council of Legal Education & Another Ex-Parte Mount Kenya University [2016] eKLR and Okiya Omtatah Okoiti vs. Cabinet Secretary, Ministry of Education & Another [2019] KEELR 677 (KLR) are cited.
18. It is submitted that the 1st respondent has no authority, under the Universities Act, to do what he has purportedly done, for his role is limited to being consulted by the interested party on any programme. It is asserted that there is no authority to purport to command a university to discontinue an academic programme. It is submitted that Article 47 guarantees fair administrative action, that is lawful, reasonable and procedurally fair, while section 4(2)(3) of the Fair Administrative Action Act requires prior notice and reasonable opportunity for a hearing, before an adverse decision is made.
19. On its part, the 2nd respondent has identified 7 issues for determination, and these are whether the preliminary objection meets the threshold of a pure point of law, the matter is a justiciable administrative action, the applicant has the requisite locus standi to maintain this application, the applicant possesses the legal capacity and representative authority to sue, the Supporting Affidavit is fatally defective for lack of personal knowledge and for containing inadmissible hearsay evidence, the "Further Affidavit" filed by the applicant can cure the fundamental defects in the suit, which are incurable as a matter of law, and the applicant is abusing the liberal standing provisions of Article 22 of the Constitution.
20. It is asserted, based on Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 and Owners of Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] eKLR, the preliminary objection is properly before the court, because it challenges the jurisdiction of the court to handle the matter as framed. On justiciability, it is argued that the court should first consider whether there is an existing actual and justiciable administrative action, capable of being reviewed under the Fair Administrative Action Act, as it is predicated on a single letter that has not been authenticated, as a foundation has not been laid, under section 68 of the Evidence Act, Cap. 80, Laws of Kenya, for its admissibility as secondary evidence, as was ruled in Peter Njau Kang’ethe vs. Bic East Africa Limited [2021] KEELRC 329 (KLR). It is asserted that the applicant, as a third party, has not explained how it got possession of a letter not addressed to it, and which was meant to be confidential. Section 2 of the Fair Administrative Action Act is cited on the definition of what qualifies to be an administrative action, to argue that the impugned action does not impose an obligation, and the existence of the letter bearing the decision has not been demonstrated.
21. On locus standi, it is submitted that the impugned letter was not addressed to the applicant, but to another, and, as the applicant was not party to the communication, it would be a stranger to the correspondence. Section 7(1) of the Fair Administrative Action Act, which defines who may bring judicial review proceedings under that Act, to mean a person who is aggrieved of the impugned administrative action, is cited, to make the point that the applicant cannot be aggrieved by a directive that was not addressed to it.
22. It is acknowledged, based on Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, that the Constitution, 2010, has liberalised the concept of standing, but it is asserted that an applicant must still anchor their claim on some real or threatened legal wrong, and sufficient interest cannot be stretched to cover a phantom directive. It is submitted, founded on Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR, that the liberal nature of Article 22 does not mean that every person can bring any claim without any connection whatsoever to the subject-matter. It is argued that the applicant can only claim to be "aggrieved," or "acting in the public interest," when there exists an actual administrative action or decision. In the present case, it is argued, without proof that the directive was ever written, and served upon Mount Kenya University, and in the absence of Mount Kenya University in these proceedings, who ought to be the proper primary party, to verify the status of the communication, the applicant has no locus standi. More fundamentally, the applicant has not demonstrated that its members, or the public at large, stands to suffer any concrete harm from the alleged directive, assuming it exists.
23. The other issue is around the legal capacity of the applicant, and it is argued that, even if the court were to find that an administrative action exists, and that the applicant has some interest in it, which is denied, the suit would still be fatally defective, because the applicant lacks the legal capacity to sue, for, although the applicant purports to be a registered association, at paragraph 2 of the supporting affidavit, at the time of filing its originating motion, it failed to exhibit a certificate of registration, and that defect could not be cured by filing a further affidavit, to exhibit the certificate. It is submitted that an unlawful society could not sue or be sued in its name. Shadrack Mwamuu Nzioka & 2 others (suing as officials of Crescent Self Help Group) vs. Tropical Blooms Limited [2020] eKLR, is cited in that regard. It is submitted that the requirements of Order 1 rule 8 of the Civil Procedure Rules have not been met.
24. There are submissions around the supporting affidavit, the argument being that the same is fatally defective, for lack of personal knowledge and for containing inadmissible evidence, and for not complying with Order 19 rule 3(1) of the Civil Procedure Rules. It is submitted that that affidavit contains allegations, which the deponent cannot prove, as a matter of his own personal knowledge, and which is essentially hearsay evidence.
25. There are also submissions around the further affidavit, as to whether it can cure the fundamental defects in the suit. It is argued that the said affidavit was filed to cure the defects raised in the preliminary objection, to introduce documents to show that the applicant is a registered society, and authorisation had been given for the filing of the application. It is submitted that preliminary objections are determined on the basis of the material filed initially, and a suit, which is a nullity ab initio, cannot be cured by subsequent filings.
26. The final submissions are around abuse of the liberal standing provisions of Article 22 of the Constitution. It is acknowledged that that provision has liberalised the concept of standing in Kenya, but it is argued that that is not an excuse for procedural defect, nor a licence to file speculative suits. Humphrey Makokha Nyongesa & Another vs. Communications Authority of Kenya & 2 Others [2018] eKLR is cited, for the argument that the liberalization of standing, under Article 22, does not mean that any person can bring any claim without any connection to the subject-matter. It is submitted that the court must still be satisfied that the applicant has a genuine grievance, and that the suit is not frivolous, vexatious, or an abuse of the court process.
27. There are 2 principle issues for determination; and the determination of the second issue may well depend on the outcome of the first. The first is technical, whether the proceedings are properly before the court; while the second is substantive, whether the application should be granted on its merits. I will start with the first, as it goes to jurisdiction, and a determination in the affirmative would render moot the consideration of the second.
28. The first issue rides exclusively on the preliminary objection, which raises technical issues around the competence of the originating motion, around justiciability, locus standi, legal capacity to sue, the validity of the affidavits, and Article 22 of the Constitution.
29. Let me start with the justiciability issue, which essentially determines whether a matter is suitable for a court to decide. It refers to the types of matters that a court can properly adjudicate, so that where a matter is adjudged to be non-justiciable, the court ought to dismiss it. In the broad scheme of things, relating to governance, it is a legal principle based on the doctrine of separation of powers, where the courts have to be careful not to overstep into the role of the other branches of government. A matter, that ought to be within the exclusive province of either the legislature or the executive, would not be justiciable, and the courts do not have to deal with it.
30. Justiciability is raised here in the sense of whether the issues raised are suitable for this court to handle. To assess justiciability, there would be 4 key considerations. The first would be on standing, answering the question whether the party bringing or commencing the matter has suffered a direct injury. The second would relate to whether the matter is ready for review by the court, in terms of whether the same has matured or if the issues are still speculative. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR). The third would be whether the issues have already been resolved, which would make determination by the court unnecessary; or if the resolution by the court would be of academic value only, resulting in orders being made in vain. See Shadrack Kinyanjui Wambui vs. Independent Electoral and Boundaries Commission & 2 others [2017] KEHC 9133 (KLR). The last would be whether the dispute should be resolved by the court, or through a different specialised process.
31. The cause herein is founded on an alleged decision by the 1st respondent, that a degree programme, in oral health, run by the Mount Kenya University, be discontinued, which decision is then communicated to the said university, by a letter dated 3rd February 2026. The applicant principally seeks the quashing of that alleged decision; the other prayers are largely ancillary to that. Let me examine the justiciability of that cause, based on the 4 considerations that I have discussed above.
32. On standing, that is the matter as to whether the applicant has suffered a direct injury, the answer would be it has not. The decision was not made with respect to it, neither was it addressed to it, but to another party, which is not even named as a party to these proceedings. Sections 7(1) and 9(1) of the Fair Administrative Action Act, contemplate action by a person who is aggrieved. That would suggest that the person aggrieved ought to demonstrate that the administrative action complained about has affected his legal rights or interests, in a direct and substantial way. That would appear to exclude the applicant herein, meaning that the applicant would not be clothed with adequate standing, to commence the cause, to challenge a decision which does not affect its legal rights or interests, or which does not affect it directly.
33. However, there is an exception, when it comes to public interest litigation, and a person without a direct personal interest may still have a standing. That is made possible by Article 22 of the Constitution of Kenya, which falls under the Bill of Rights, and which permits any person to act in public interest, to enforce the rights and freedoms in the Bill of Rights. The Fair Administrative Action Act was passed specifically to operationalise Article 47 of the Constitution, which also falls under the Bill of Rights, and the proceedings under it are for enforcement of rights, which links or connects the instant process to Article 22. Therefore, based on Articles 22 and 47, the applicant need not be directly affected by the process or decision complained about, for it is allowed to bring public interest litigation, to challenge administrative actions that violate constitutional rights. Article 22 is reinforced by Article 258 of the Constitution, which carries complementary provisions, which touch on constitutional issues that may fall outside the Bill of Rights. See Mwabalahe & 5 others vs. Bamahriz & another [2024] KEELC 13280 (KLR).
34. The second consideration is on whether the claim has matured, or whether it is largely speculative. The impugned letter, of 3rd February 2026, which is the basis for commencement of these proceedings, at relevant portions, reads as follows:
“… you are advised to discontinue the programme and ensure that all health-related programmes offered at the university respond to identified health population health needs and service delivery gaps.
Additionally, in consultation with KMPDC, you are required to develop a transition plan for all students who have completed or are currently enrolled in the programme, outlining clear transition arrangements in line with applicable regulatory requirement.
The transition plan should be forwarded to this Office within 21 days of this letter for information and record purposes.”
35. My understanding, from the language of the first paragraph of the portion of the letter that I have recited above, is that the letter is advising the Vice Chancellor to discontinue the programme, based on the opinion of the Ministry of Health, that it was “not aligned with the prevailing oral health population needs of the country,” that there was no clearly established service delivery gap that it was seeking to address, and that the students enrolled in the programme risked spending their resources without an available pathway to professional practice. The language is seemingly advisory, not directory. It does not direct the discontinuation of the programme, but, rather, advises the discontinuation. It seemingly offers advice, rather than direct or command action. There is apparently, that is on the face of it, no order to discontinue the programme, and, therefore, it could be argued that no decision has been made, by the 1st respondent, to discontinue the programme.
36. Based on the foregoing, there is a suggestion that there is no case for review, because the case herein has not matured for that. It would have matured, in that context, if a decision had been made, and the Mount Kenya University was being directed or instructed to discontinue the programme. The issues appear, in that context, to be still speculative, so long as no decision has been made. It would, then, in the circumstances, be premature and speculative to go to court, seeking to quash a decision or a directive which is yet to be made. See Itumbi vs. Law Society of Kenya & 55 others [2023] KECA 593 (KLR).
37. The 2nd respondent has been ambivalent, on the status of the impugned letter, at once speaking as if the letter does not exist, and, in the same breath, stating that it is confidential communication, which the applicant should not have accessed. It is a classic case of speaking from both sides of the mouth. I note that the 1st respondent, the purported author of that letter, has not appeared, and has not filed any response. A response, by the 1st respondent, would have cleared the air, on the authenticity of the letter. I find it curious, that the office of the Attorney General, who is named as the 2nd respondent, and who should have come on record for the 1st respondent, for it is the constitutional duty of the 2nd respondent to act for the State and its officers, by dint of Article 156(4)(b) of the Constitution, has, for some undisclosed reason, been careful not to come on record, as appearing for the 1st respondent, and has chosen to go on record exclusively for itself. That act or conduct says something. I shall treat the impugned letter as authentic.
38. The impugned letter has been placed before the court by way of an affidavit. It is affidavit evidence, founded on statements made on oath. Any challenge, to its genuineness or authenticity, can only be raised through another affidavit, sworn by the alleged maker of the letter, denouncing it. Its authenticity cannot be countered or challenged through grounds of opposition or written submissions. It is evidence presented through an affidavit, which can only be cancelled by counter-evidence presented through another affidavit, sworn and filed by the opposing party. The failure to do that can only mean that the evidence, that the 1st respondent wrote the impugned letter, has not been controverted, and that that letter is authentic.
39. The 2nd respondent has argued that the letter was not meant for consumption by the applicant. That is quite so. However, this is public litigation. These are matters touching on public interest. The degree programme is mounted by a private university, but that university is accredited to run the subject academic programme by the interested party, which is a public entity, responsible for governance of the university education space in Kenya. The academic programme, although run by a private entity, is meant for consumption by the public, hence there is public interest, which draws in the 1st respondent and the interested party, both of whom are public entities, albeit executing different mandates.
40. Whatever happens, at the public space, should be of interest to the general public, for it affects them. Correspondence, purportedly done in public interest, conveying a decision that would impact the public, cannot be said to be private or confidential. The fact that it is not addressed to the public-spirited individual or a
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